Justices of the fourth division said they granted the motion to quash filed by Piatco chief Henry Go because he is a "private individual" and his alleged co-conspirator, former transportation secretary Arturo Enrile, had already died.
In a 15-page resolution penned by Justice Jose Hernandez, the anti-graft court noted it was a "big blunder" for prosecutors to file the graft case even while knowing the indictment didn’t meet the requisites for a case.
"The prosecution had prior knowledge of the death of Enrile even before it filed the information. The prosecution is obviously under the wrong impression that such death is inconsequential in the filing of the information," the court said.
The court stressed that Go is a private individual and was president and chairman of Piatco when the questionable contract to build NAIA-3 was forged with the Department of Transportation and Communications (DOTC).
Go was separately charged by the Ombudsman before the Sandiganbayan for allegedly entering into contracts that deprived the government of revenues. Accused with him were three former DOTC chiefs and six other people.
Prosecutors held former DOTC secretaries Vicente Rivera, Wilfredo Trinidad and Pantaleon Alvarez, Undersecretary Primitivo Cal and bids and awards committee vice chairman Francisco Atayde criminally liable for granting benefits to Piatco at the government’s expense.
Deputy Ombudsman for Luzon Victor Fernandez, who approved the indictments, included several Piatco officials in the suit, among them Cheng Yong, director Hans Arthur Vaget and consultants Alfredo Liongson and Bernd Struck.
Prosecutors said the DOTC officials had taken advantage of their position and granted Piatco, formerly Paircargo Consortium, "unwarranted benefits" from July 1997 to June 2001.
Among the violations of the Anti-Graft Law and the Build, Operate and Transfer (BOT) Law committed by the DOTC in entering into the contracts were the government’s guarantee to assume Piatco’s liabilities in case of "default."
Other provisions that were also labeled onerous were: the government’s obligation to pay P180 million to Piatco in case the Pasig regional trial court nullified the contract for the construction of NAIA-3; and the construction of a "less expensive access road" which would connect the airport’s Terminals 2 and 3 in lieu of an access tunnel that should have been built by Piatco.
The indictment, which was prepared by graft prosecutor Donna Pascual, also cited that DOTC officials conspired with Piatco executives in allowing the firm to avail itself of the BOT scheme, even though it lacked the "financial capability" and was "not a qualified bidder."
Cal, Atayde and Alvarez were charged for granting the franchise to Piatco. The Ombudsman said these officials entered into the 1997 concession agreement, side agreement and amended and restated concession agreement (ARCA), all of which were "grossly disadvantageous to the government."
The Piatco case, according to Fernandez, "is a prime example of why only the crème de la crème should hold positions of public trust and accountability."
Fernandez urged President Arroyo to "be more circumspect in the choice of her appointees. Otherwise, she would not have had to learn from this painful, costly mistake called Piatco." — Delon Porcalla